Daily Comment on News and Issues of Interest to Michigan Lawyers

November 2011

11/30/2011

SBM Blog would like to commend the Michigan Supreme Court for doing something that many people in Lansing found it nearly impossible to do this morning -- show up. All seven Justices were on the bench, on time and unfazed by Lansing's 9.5" of heavy snow, for today's administrative public hearing. Also to be commended, of course, are the far-travelling members of the bar who offered input on the agenda items (PDF). Wayne County chief appellate prosecutor Tim Baughman and SADO's deputy director Jonathan Sacks were the morning's principal actors, trading mostly competing views on three items:

Whether to adopt one of the published alternatives, including Alternative A, which would establish that an order suppressing material and substantial evidence is considered a final order and therefore is subject to an appeal by right, or Alternative B, which would establish a right to a mandatory stay while a prosecutor pursues interlocutory appeal of a trial court’s decision to suppress a prosecutor’s evidence.

Whether to adopt the proposed amendments of MRE 606 and MCR 2.512 that would provide guidance about the scope of inquiry that jurors may be subject to following a verdict and would establish a procedure by which postverdict contact with jurors may be sought. 4. 2010-13 Proposed Amendment of Rule 6.001 of the Michigan Court Rules.Published at 489 Mich 1246-1247 (2011).Whether to adopt the proposed amendment of MCR 6.001 that is intended to clarify the discovery procedures in district court.

Whether to adopt the proposed amendment of MCR 6.001 that is intended to clarify the discovery procedures in district court.

Partners Steven Matz and Sam Pietsch offered a free market perspective on attorney advertising, in opposition to proposed amendments to MCR 7.3 that would reformat the rule, require the inclusion of the designation "Advertising Material" for written materials (including e-mail communications), but not for radio or television advertisements, and require that a 30-day period pass before an attorney could contact a potential client after a death, injury, or accident. The State Bar also reiterated its opposition to the proposed changes.

Liisa Speaker, on behalf of the Appellate Practice section, spoke in favor of the Court's adoption of a decade-long project, an omnibus rewrite of the appellate subchapter of the MCRs. At the Court's urging, she supported an effective date of May, 2012 for the changes.

One's a soft, chewy food product -- well, you know, you've been eating that cute little candy on and off all your life, right? The other's a soft shoe product that rolls up so that women can conveniently carry a pair around in their purses to provide ready relief from high heels. Clearly, it is not in anyone's interest to confuse the two products. But how likely is such confusion? That, more or less, is the issue in the brand dilution case filed by Tootsie Roll Industries last week, as reported by ABA Journal.

Strippers posing as legal assistants. From the Miami New Times' Riptide:

Multiple attorneys interviewed by Riptide say the FDC visitor rooms have been taken over by South American pole dancers posing as paralegals for wealthy drug lords inside. Lawyers hired by the accused narco dons allegedly list the scantily clad women as "legal assistants," and the FDC lets them in. Meanwhile, attorneys who refuse to go along risk losing their clients to lawyers with busty beauties on staff.

In the general category of "crimes you've never heard of," the New York Times has an exasperating story about a 64-year old man charged with a public disturbance in a NYC subway for causing inconvenience and annoyance and "refusing to provide pedigree info.” An American citizen from Bulgaria, he gave his name and address upon demand but refused to answer where he was originally from. (The story also involves nearsightedness and a lady covered in blue tattoos, but you'll have to read the whole story to get the local color.)

Dr. Farid and Eric Kee, a Ph.D. student in computer science at Dartmouth, are proposing a software tool for measuring how much fashion and beauty photos have been altered, a 1-to-5 scale that distinguishes the infinitesimal from the fantastic. Their research is being published this week in a scholarly journal, The Proceedings of the National Academy of Sciences.

Their work is intended as a technological step to address concerns about the prevalence of highly idealized and digitally edited images in advertising and fashion magazines. Such images, research suggests, contribute to eating disorders and anxiety about body types, especially among young women.

An upcoming paper by Georgetown Law professor Donald Langevoort, "Getting (Too) Comfortable: In-House Lawyers, Enterprise Risk and the Financial Crisis," suggests that the personality traits of successful in-house counsel might supply an answer, i.e., that people whose psychological make-up inclines them toward risk and flexibility without the burdens of doubt are the "likely winners" in the promotion tournament. If so, the paper notes (and SBM Blog concurs) "that would not be particularly good news for either legal or business ethics."

11/29/2011

In an upcoming paper, "Originalism and Sex Discrimination," a well-established Federalist Society scholar teams with a new law grad to take on the "truism" that originalism cannot justify the Supreme Court‘s sex discrimination cases of the last forty years. Prof. Steven Calabresi and Julia Rickert dedicate their paper to Supreme Court Justices Ruth Bader Ginsburg and Antonin Scalia, "from whom we have both learned so much." The paper argues that the history of the 14th amendment establishes that it forbids the imposition of caste systems and class-based lawmaking, not just discrimination based on race. While conceding that the Framers and ratifiers of the 14th amendment did not understand sex discrimination to be a form of caste or of special-interest class legislation, the paper argues that original expected applications of a text are not the last word on its reach.

When the “impartiality” provision is used as the basis for a recusal motion, the challenger may be motivated by one of two principal aims, and there is a very thin line between them. On the one hand, the challenger may be pursuing the civic-minded objective of helping to assure that the judicial process is both actually fair and appears to be fair to outside observers. On the other hand, the challenger may be pursuing a more selfish interest in trying to shape the legal outcome. When the political community starts talking excitedly about recusal, the chances are fairly strong that the latter motive is primarily at work, even when the rhetoric used includes high-sounding principle.

Indeed, the combatants in the current debate over Justices Kagan and Thomas appear to be operating upon the premise that those groups know already how the two Justices will vote on health care, and the aim is to prevent them from doing so. Kagan is presumed to be a vote in favor of upholding the new law; Thomas is presumed to be a “No” vote. To get Kagan off the case raises the prospect that the law will fall; to get Thomas to sit it out raises the chance it will be upheld. Such presumptions might ultimately turn out to be faulty, but that does not lessen the intensity with which the expectations are nurtured in the meantime.

The Guardian has made impressive use of a massive public release of data about criminal justice system dispositions in England and Wales. Check it out here, then try to visualize how a similar interactive representation would look in Michigan, and nationally.